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Real Estate Law

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Your comments are a bit choppy so I will try to state what I understand...

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Someone has passed away and owned a condo?

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And no one has filed a probate case to settle the estate?

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Who is selling the condo if there is no probate rep? or is it being foreclosed on?

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I need some more of the back story to figure out what is going on here and what options you have...

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thanks

Barrister

Ask Your Own Real Estate Law Question

Customer reply replied 1 year ago

I am the realtor for an executor of his parents estate... and condo... condo is for short-sale... executor's sister has been on property since parents passed away and will not moving, now committing waste - damages to carpets, taking furniture and now refusing to move... we have an offer on the unit but since she won't move we have to process her out - and now clerk is saying that executor needs to file verified motion for emergency possession to take possession... there is no agreement (other than sister telling atty for hoa she will be paying but never did and now bill is $2700+).. and she does pay utilities - but don't know for sure who's name they are in... mail still comes to house and she opens and won't relay or give info related.. thinks brother owes notice to her but there is no agreement and will only states property to be sold and divided ... but it has now been over a year since mother died... and daughter/sister still will not leave... we have offer now on home and was supposed to close end of month... again clerk stated he had to file for VMFEP - but cannot locate form - only form shown was notice of claim... ?no probate - verified

Ok, first, there is no way to sell the house if there has been no probate filed... Only the executor of the estate has the legal authority to sell the house and until one is appointed by a probate court judge, legally no one has the authority to do anything..

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So until someone files a probate case to be appointed as executor, there is no one who can file the motion for possession.

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When someone is formally appointed by the judge as the rep of the estate, then they can file the motion for emergency possession if the sister is damaging the property under Indiana Code 32-31-6.

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IC 32-31-6-4Petition requirementsSec. 4. A petition for an order under this chapter must:(1) include an allegation specifying:(A) the violation, act, or omission caused or threatened by a landlord or tenant; and(B) The nature of the specific immediate and serious:(i) injury;(ii) loss; or(iii) damage;that the landlord or tenant has suffered or will suffer if the violation, act, or omission is not enjoined; and(2) be sworn to by the petitioner.

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But there is no standard form for this, as each is drafted individually based on the facts of the case.

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However, this is one that could be copied with the relevant information for your client once they are formally appointed by the probate court:

right, but there is one similar for marion county - however the clerk said the judge wanted to see a "verified motion for emergency possession" form - as the form you posted was not a guarantee - and they gave first avail court hearing into October - she said it wasn't a guarantee the judge would allow ... so without this particular form aforementioned, he won't get a date sooner.. hmmm....even the small claims manual doesn't have or show....

The verified motion just means that it is sworn to by the person asking for possession..

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But again, the son doesn't have any authority at all legally until he is formally appointed by a probate court judge as executor. He can no more file the motion than you could... Right now, he is just a child of the deceased, until he gets appointed by the judge.

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And there is never a "guarantee" that the judge is going to grant the motion.. The petitioner has to prove to the judge that the person in the dwelling is causing severe damage to the property and it will suffer irreparable harm if they are allowed to stay. So it isn't just filing a form then you get to throw the person living there out..

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This is a sample of a verified motion for emergency possessory order and as you can see, it is individually drafted based on the specific facts of the situation..

So the son may need to hire an attorney on behalf of the estate once he is appointed so as to get the motion drafted to get her out..

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thanks

Barrister

Ask Your Own Real Estate Law Question

Customer reply replied 1 year ago

unfortunately the above is pro tenant - with an agreement - not pro owner/executor.. no agreement... no landlord tenant relationship... unfortunately the link does not provide for... marion county had only two options.... as forms... thus I think why a form doesn't exist as you linked... something to be crafted by legal team...thanks anyway.

That is my standard analogy if someone wants to jump into a complex legal case and doesn't really understand the mechanics of it and how it is easy to turn a winning case into a losing one if you don't know the rules..

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Some things are relatively straightforward...like a normal eviction action. But this is a little more complex and requires a lot more legal drafting experience to pursue..

It was my pleasure to work with you and help with your question. If you ever need me in the future, you can post a new question with "For Barrister" in the caption and the JustAnswer employees will get it to me.

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If you feel I have answered all your questions, I would very much appreciate a 5 star rating by clicking on the rating scale on your screen as that is the only way I receive credit for my work.

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Thanks much

Barrister

You are very welcome. Happy to help any time.

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It was my pleasure to work with you and help with your question. If you ever need me in the future, you can post a new question with "For Barrister" in the caption and the JustAnswer employees will get it to me.

.

If you feel I have answered all your questions, I would very much appreciate a 5 star rating by clicking on the rating scale on your screen as that is the only way I receive credit for my work.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).